ORDER

1. This writ petition was filed challenging the Resolution No.246 dated 29-1-1998 passed by the 1st respondent proposing to give an extent of Acs.1-50 cents comprised in TS No.101 of Anakapalle to the 3rd respondent for parking the lorries. During the pendency of the writ petition the impugned Resolulion No.246 was cancelled by the 1st respondent and by a Resolution No.42(D) dated 26-5-1999, the Municipal Council decided the hand over the same land to AP Vaidya Vidhana Parishad for the purpose of construction of 100 bed hospital. Therefore, the petitioner filed necessary application seeking amendment of the writ petition and prayer in the writ petition. It was allowed. As of now the writ petition challenges the resolution No.42(D) dated 26-5-1999 as one without jurisdiction, illegal and violative of the Articles 14 and 300-A of the Constitution of India insofar as the land admeasuring Acs.0-15 cents in TS No.101 is concerned.

2. Briefly stated facts are as follows:

The petitioner claims to be the owner and possessor of an extent of Acs.0-15 cents out of Acs. 1-84 cents. He alleges that for the last 40 years his family members are in possession and they also raised a thatched house. The Municipality or the Government were never in possession of the property for the last 40 years and therefore the petitioner acquired title by prescription. Ignoring the right of the petition, the 1st respondent proposed to transfer the entire land initially for the purpose of lorry stand and later for a hospital. The Municipal Council did not issue any notice to the petitioner calling upon him to file objections before taking steps to evict the petitioner. In order to, prima facie, show that he is in possession of the land, the petitioner has filed receipts issued by the 1st respondent showing payment of temporary encroachment fee. He also filed a temporary receipt for land revenue allegedly issued by Village Administrative Officer for 1988-89. He submits that he is a lawful owner of the property in question and if the Municipality seeks possession, it has to establish its title by approaching the Civil Court. Unless the title of the Municipality is established, they cannot evict the petitioner forcibly. This Court while admitting the writ petition granted interim direction on 18-1-1999 not to dispossess the petitioner from the thatched shed constructed in TS No.101. This Court made it very clear that the interim direction is applicable only in case the thatched shed is existing as on the date of passing the order dated 18-1-1999.

3. The 2nd respondent filed application being WV MP No.2378 of 2000 along with counter affidavit praying to vacate the interim order dated 18-1-1999. When the WV Mp is listed before me, having regard to the urgency, as the hospital construction is stalled, the learned Standing Counsel prayed for disposing of the writ petition finally. This is consented to by the learned Counsel for the petitioner. Accordingly, the matter is taken up for final disposal.

4. In the counter-affidavit, the Commissioner states that the land admeasuring Acs.1-84 cents in TS No.101 forming part of Chimidi estate known as Gavaramma Tank, after completion of all necessary proceedings under the Estates Abolition Act, 1948, vested in Government and hence stood transferred to Municipality. In an extent of Acs.0-30 cents there are public toilets and the remaining land has been in possession of the Municipality. The petitioner who is a wealthy jaggery merchant who besides other properties, owns house properly near Parameswari Park has occupied Acs.0-15 cents of land. As the petitioner encroached the Municipal land, the encroachment fee is being collected and the same does not confer any right or prescriptive title on the petitioner. The counter also states that the writ petition for deciding a title is not maintainable under Article 226 of the Constitution of India.

5. So as to ease the traffic due to wholesale jaggery business in Anakapalli, it was decided by Resolution No.246 dated 29-1-1999 to provide vacant site in TS No.101 to the 3rd respondent to maintain lorry stand so that the public paths and road margins would not be used for lorry parking. At a later point of time, Resolution No.246 was cancelled and by Resolution No.42(D) dated 26-5-1999 it was decided to hand over the site to Andhra Pradesh Vaidya Vidhana Parishad to establish handred bed hospital in Anakapalli town. The construction of the hospital and staff quarters is being taken up by Andhra Pradesh Health, Medical Housing Infrastructure Development Corporation with the assistance of world bank funds. It is time bound programme requiring completion of the project by January, 2001. When necessary steps are being taken to evict the petition, he approached this Court and obtained the interim orders. The Municipality also claims that the vests in them under Section 37 of the A.P. Municipalities Act, 1965 (hereafter called 'the Act') and therefore the Municipality is justified in passing the Resolution No.42(D) dated 26-5-1999.

6. Sri A. V. Sesha Sai, learned Counsel for the petitioner submits that the action of the municipality in seeking to evict the petitioner without issuing proper prior notice is unsustainable. If the Municipality claims the property as vesting in them, they can only do so by approaching the Civil Court seeking declaration of title. Though it is not specifically raised, the learned Counsel also raised a new ground. Indeed, the submission that a notice is required to be given to the petitioner as any action by the Municipality results in civil consequences, is not seriously disputed by the learned Standing Counsel Sri E. Sambasiva Prathap. He relied on the provisions of Section 194(1)(b) of the Act and submits that while evicting the encroacher who is in illegal occupation of the premises or property of the Municipality, one month prior notice is required to be given and in the event of failure on the part of the encroacher, the Municipality is justified in taking recourse to sub-section (2) of Section 194 of the Act.

7. The learned Counsel for the petitioner, however, submits that under Section 37 of the Act property does not vest in the Municipality. Therefore, Section 194(1)(b) has no application. Elaborating the submission further, he contends that Section 37 enables the Municipality only to be in possession of the lands belonging to the Government. In this case it is not denied that after abolition of Chemidi Estate, the said land is vested in the Government which by operation of law remains in possession of Municipality. Therefore, he submits that having regard to clear language of Section 194 of the Act that, the Municipality can initiate action only with regard to the premises vesting in it or belonging to the Council. In respect of land in TS No.101 which belongs to the Government, the Municipality has no power or jurisdiction to evict the petitioner. The argument besides being ingenuous looks attractive. But the same is without any substance.

8. By a legal fiction all vacant lands belonging to or under the control of Government situated within the local limits of Municipality would be deemed to be in possession or under the control of the Municipality. As per sub-section (2) of Section 37 of the Act, the Municipality shall keep all such vacant lauds free from encumbrances and shall restore the possession or control or any such land to the Government free of cost whenever it is required by the Government for their use for any public purpose or for the purpose of alienation to any person or any local authority. The Municipality, however, has no power to alienate such vacant land and shall not construct or permit the construction of any building on vacant land without prior permission of the Government. The provision verbatim reads as under:

"Section 37 : Vacant lands belonging to the Government situated in the Municipality to be in possession or under the control of the Council ."-(1) On and from the date of the commencement of this Act, all vacant lands belonging to or under the control of the Government situated within the local limits of a municipality shall, subject to the provisions of sub-sections (2) and (3) and to such conditions as may be prescribed, the deemed to be in the possession or under the control of the Council concerned for purposes of this Act.

Explanation :-For the purpose of this Section vacant land includes a poramboke, donka or kunta.

(2) The Council shall keep all such vacant lands free from encumbrances and shall restore the possession or control of any such land to the Government for their use for any public purpose or for purpose of alienation to any person or locall authority.

(3) The Council shall not-

(a) construct or permit the construction of any building or other structure on any such vacant land;

(b) use or permit the use of such vacant land for any permanent purpose; unless the prior permission of the Government is obtained by the Council therefor, after furnishing such information as the Government may require, including the usefulness of the land or any housing scheme;

(c) alienate such vacant land to any third party"

9. The law vests all the Government property in the Municipality. The Municipality is deemed to be in possession of all Government lands. The paramount owner of all vacant lands belonging to or under the control of the Government is the State. They are vested for a limited purpose in the Municipality for protecting them and keeping the vacant land free from all encumbrances. The vacant land belonging to the Government can be utilised in two-ways - either by restoring the possession or control to the Government for any public purpose or the Municipality itself utilising the land for construction of any building or structure with the prior permission of the Government. Therefore, the Municipality shall be deemed to be in possession of the Government land as a trustee. A Trustee is required to take all necessary steps to protect the land from encroachment which is made clear in sub-section(2) of Section 37 of the Act. In this back ground, the relevant portion of Section 194 may be extracted:

"Section 194: Power to evict certain persons from Municipal premises :-(1) If the Commissioner is satisfied -

(a) that a person authorised to occupy any premises vesting in or belonging, to, the Council has, whether before or after the commencement of this Act-

(i) Not paid rent lawfully due from him in respect of such premises for a period of more than three months;

(ii) sublet, without the permission of the Council, the whole or any part of such premises;

(iii) otherwise acted in contravention of any of the terms, express of implied, under which he is authorised to occupy such premises, or

(b) that any person without the previous permission or licence from the Council is in unauthorised occupation of any premises of the Council;

he may, notwithstanding anything in any law for time being in force, by notice served by post, or by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be, prescribed, order that such person as swell as any other person, who may be in occupation of the whole or any part of the premises shall vacant the same within one month of the date of the service of the notice, and where such notice relates to any land shall also remove any building or other contraction or anything deposited on it"

10. Section 194(1)(a) speaks of premises vesting in or belonging to the Council. It does not speak of the land or premises vesting in the Council as absolute owner or as absolute possessor or title holder. Having regard to mandatory nature of sub-section (2) of Section 37, the only reasonable interpretation of Section 194(1)(a) should be that the Municipality has a duty to protect the land from encroachment even in respect of the land which shall be deemed to be in possession of the Municipality. As already pointed out by me all the land in Municipality belongs to the Government as a paramount owner. The Municipality or any other local authority holds the property as a trustee and for the purpose of maintenance of the roads, common areas, tanks, the land belonging to the Government vests in the Municipality either absolutely or by way possessory title. The phrase "Premises vesting in or belonging to the Council" cannot be given a narrow meaning. They should be broadly interpreted so as to include the land which vests in possession of the Government under Section 37 of the Act. Further, subsection (2) casts a duty on the municipality to keep all vacant lands in its possession free from encumbrances. Should there by any encroachment of any land belonging to the Government, the Municipality cannot wait till some other official takes necessary steps for removing the encroachment. It shall be the duty of the Municipality to remove the encroachment. In such an event, the only recourse should be either under Section 192 or Section 194 of the Act. It is not denied by the both the learned Counsel that Section 192 has no application and strictly it applies to encroachment on road margins. It is interesting to point out that all the roads, lanes and passages within the jurisdiction of the Municipality vests in the Government as a paramount owner and they remain vested in the Municipality for the purpose of maintenance. On an analogy which is submitted by the learned Counsel for the petitioner, it cannot be accepted that the Municipality should not take any action for removing the encroachments from the roads as they belong to the Government. The Municipality is duty bound to remove all encroachment as statutory duty is cast on them.

11. Therefore, the submission that Section 194 is a provision which exclusively applies in a case where the land or premises belongs to the Council/Municipality and in case where the land is deemed in possession of the Municipality, the provisions of Section 37 have no application cannot be countenanced. That would result in absurdities. While reiterating the law the Court should shirk any interpretation which is absurd and cannot be reconciled with the scheme of the controlling enactment. Accordingly, the submission is rejected.

12. As noticed above, the main submission of the learned Counsel for the petitioner is that allegedly the petitioner is in possession of the land admeasuring Acs.0-15 cents in TS No. 101 for the last 40 years by duly paying encroachment fee. He cannot be evicted, it is submitted, without prior notice. There cannot be dispute on this. The Resolution No.42(D) dated 26-5-1999 passed by the Municipality is for a purpose which is recognised by subsection (2) of Section 37 of the Act. The District Collector, Viskahapatnam in his letter Rc.No.6363/94/E4 dated 7-6-1999 addressed to the 2nd respondent requested to handover Municipal land in TS No.101 as well as TS No.85 to the Executive Engineer of Andhra Pradesh Health, Medical Housing Infrastructural Development Corporation to enable to proceed with the construction of the hospital. Therefore, there is no infirmity or illegality in the resolution. However, as per the provisions of Sections 59 and 70 of the Act, a special procedure is prescribed for cancellation of resolutions passed by the Municipal Council. A writ petition, ordinarily, is not a remedy to challenge the resolutions. Be that as it may, no serious challenge is made to Resolution No.42 dated 26-5-1999 except the one to which I have adverted to above.

13. The learned Counsel for the Municipality submits that the land which is possession of the petitioner is earmarked for construction of hospital and staff quarters and the construction of the hospital is almost completed. It is open to the Municipality to follow the procedure under Section 194(1)(b) of the Act and take necessary steps forthwith to evict the petitioner.

14. In the result, subject to the above observations, the writ petition fails and the same is dismissed. There shall be no order as to costs.